On secret ballot & motions of no confidence: MPs must be courageous

15 Apr 2017

PBM

South Africa might want to look towards a US Supreme Court judgement in tackling a Constitutional Court application which seeks employment of the secret ballot in a motion of no confidence against President Jacob Zuma.

In the seminal decision of Doe v Reed, the United States resolved the issue of whether legislators (law-makers) have a right to vote by means of a secret ballot in the course of executing their voters’ mandate. Principles set out in the US matter might be useful as South Africa entertains an application brought by General Bantu Holomisa. The leader of opposition party United Democratic Movement (UDM), wishes for the employment of the secret ballot on the basis that some members of parliament from the ruling party, ANC, might want to vote for the motion of no confidence against Zuma but will be dissuaded by fear of intimidation. As such, goes the argument, they must be allowed to vote in secret.

The US Supreme Court (equivalent of our Constitutional Court) laid down the principle that legislators must have the courage of their convictions. In that regard, they are compelled to make all their decisions in public, and are not entitled to legislate under the cloak of anonymity. Below, are the snippets from the decision of Justice Scalia, who concurred with the majority and wrote a separate decision that is often quoted with approval in the entire Western Democratic World. The decision is followed in almost all modern liberal-democratic jurisdictions.

“Our Nation’s longstanding traditions of legislating and voting in public refute the claim that the First Amendment accords a right to anonymity in the performance of an act with governmental effect.”

“Plaintiffs point to no precedent from this Court holding that legislating is protected by the First Amendment. Nor do they identify historical evidence demonstrating that “the freedom of speech” the First Amendment codified encompassed a right to legislate without public disclosure.”

“This should come as no surprise; the exercise of lawmaking power in the United States has traditionally been public. The public nature of federal lawmaking is constitutionally required.”

“Plaintiffs raise concerns that the disclosure of petition signatures may lead to threats and intimidation.”

“There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism.”